Reserved
Case :- JAIL APPEAL No. - 2312 of 2013 Appellant :- Surjeet Kumar Respondent :- State Of U.P. Counsel for Appellant :- A.G.A.
Hon'ble Ashwani Kumar Mishra,J. Hon'ble Chandra Dhari Singh,J.
(Per Hon'ble Ashwani Kumar Mishra, J.)
1. This jail appeal is preferred against conviction of appellant under Section 302 IPC in Sessions Trial No.112 of 2012 passed by Additional Sessions Judge, Court No.2, Pilibhit dated 30th March, 2013, arising out of Case Crime No.1070 of 2011, under Sections 324, 308 and 506 IPC. Section 302 was added as the victim succumbed to his injuries on the next day of the incident. The accused appellant has been sentenced to life imprisonment alongwith fine of Rs.20,000/- and to undergo six months further rigorous imprisonment in the event fine is not deposited.
2. Accused appellant Surjeet Kumar has been found guilty of murdering his father Kailash Chandra. As per the prosecution version, deceased Kailash Chandra on the fateful day i.e. on 26.11.2011, at about 10 a.m., was waiting for public transport at his Village Gahloiya for going to Pilibhit for his treatment, when his son Surjeet Kumar came to him and asked for his share of ancestral land to be partitioned or else he would kill him. He was carrying a sharp edged instrument 'Banka' which is ordinarily used for cutting sugarcane crop. 'Banka', also called 'Gandasa' is also capable of inflicting serious injuries if it is used as a weapon. Upon deceased's refusing to have the share of accused appellant partitioned and segregated, accused appellant started hitting him with 'Banka' on account of which multiple serious injuries were caused to the victim. The deceased fell and became unconscious. He was taken to District Hospital, Pilibhit and a written complaint was given to the police on the same day, upon which a First Information Report was lodged at 3.30 p.m. on 26.11.2011 as Case Crime No.1070 of 2011, under Sections 324, 308 and 506 IPC. The injured, however, succumbed to his injuries and died on 27.11.2011 at 7.00 p.m. at District Hospital, Pilibhit. The accused appellant was arrested and at his pointing out the 'Banka' used for committing the crime was recovered from the Paddy heap kept opposite house of one Subhash Chandra. The sharp edged iron side of 'Banka' was of the size of about 10 fingers fitted in a wooden handle measuring six fingers. The accused appellant is said to have admitted having murdered his father by the same 'Banka' and for the fear of police had hidden it beneath the paddy heap belonging to Subhash Chandra. No independent witness, however, came forward to sign the recovery memo. A chargesheet ultimately was filed in the matter on 24.12.2011, upon which cognizance was taken by the Chief Judicial Magistrate on 2.2.2012. The proceedings were committed to the sessions on 12th March, 2012. The accused appellant denied the charges levelled against him, and therefore, the trial began.
3. Prosecution in order to prove its case has adduced three eye witnesses namely PW-1 Pradeep Kumar, who is also the informant, PW-2 Mohan Lal, and PW-3 Sahendrapal. Deceased had three sons with PW-1 being the eldest while, PW-3 is the youngest. The accused appellant is the third son of the deceased. Dr. Tejpal Rathore appeared as PW-4 to prove the postmortem report. PW-5 is Sub-Inspector Mohit Kumar Chaudhary, who had prepared the Panchayatnama; PW-6 is the Investigating Officer Dambar Singh. PW-7 Constable Rishipal Mishra and PW-8 Constable Bhagwan Swarup Pathak are other formal witnesses of the investigation. Dr. S.K. Singh had been adduced on the asking of the Court as CW-1 for the purposes of examining the accused appellant.
4. Complaint has been exhibited as Ext. Ka-1; Ext.Ka-2 is the Panchayatnama; Ext.Ka-3 is the Postmortem Report; Ext.Ka-4 to Ext.Ka-8 are the Photograph of the dead body, Letter of CMO, Letter of RI and Specimen Seal; Ext.Ka-9 to Ext.Ka-13 are the Site Plan, Arrest Memo, Fard, Site Plan and Chargesheet; Ext.Ka-14 to Ext.Ka-16 are the Docket Form and GD for departure and arrival; Ext.Ka-17 is the FIR; Ext.Ka-18 is the Nakal Rapat; Ext.Ka-19 is the medical report submitted by Dr. S.K. Singh (CW-1) of the accused; Ext.Ka-20 is the Forensic Laboratory Report. Ext.-1 is the cloth having sample of earth mixed with blood in the box; Ext.-2 is the box; Ext.-3 is the sample earth with blood; Ext.-4 cloth containing simple earth in the box; Ext.-5 is the box; Ext.-6 is the simple earth; Ext.-7 to Ext.-13 are the clothes worn by the deceased.
5. Statement of accused under Section 313 Cr.P.C. was also recorded.
Charges and materials relied upon against the accused appellant was explained and his reply has been recorded. The statement of accused under Section 313 Cr.P.C. is intriguing and shall be dealt with later.
6. PW-1 Pradeep Kumar is an eye witness and has clearly stated that on the fateful day his deceased father was sitting at the crossing for going to Pilibhit in connection with his treatment and his youngest brother Sahendrapal had come to drop him. He has stated that his field is on the east of the crossing and he was returning after ploughing his field when the incident happened. He has stated that when he was at a distance of 50-100 steps, he saw his brother Surjeet Kumar repeatedly inflicting blows with 'Banka' upon his father. By the time PW-1 could reach the spot the accused had left and hidden himself in the sugarcane field. The victim had gone unconscious. He has stated that due to multiple injuries caused one of his hands had broken and a finger was also severed. Panchayatnama was done of which he was a witness and it was proved. It was stated that the accused, previously also, used to ask for his portion of land and would repeatedly threaten that unless his share of land is segregated he would kill his father. It is also stated that the accused was not doing anything. In the cross examination PW-1 has stated that accused was arrested at about 4.00 p.m. on sixth day after the village postman informed that accused was hiding there. The police was informed by one Gajendra and the accused was arrested.
7. PW-2 Mohan Lal is a retired teacher, who is also an eye witness. He says that while he was leaving towards his 'Aata Chakki' when he heard someone screaming that he is being killed. He turned around and saw that Surjeet Kumar was hitting deceased with 'Banka'. Some of the other persons of the village also came with Lathi on the spot alongwith son of the deceased Pradeep Kumar and the accused fled. He has stated that the deceased was taken on a Tractor Trolley to Sadar Hospital, Pilibhit, where he died on the next day. In the cross examination he states that he has seen the incident from a distance of about 100 steps, and that Pradeep Kumar and Sahendrapal, two other sons of deceased, came later. He has however denied the suggestion that on the asking of Pradeep Kumar and Sahendrapal he was making a false deposition.
8. PW-3 Sahendrapal is the youngest son of the deceased. He has stated that he left his father around 9.00 to 10.00 a.m. at the culvert and while he was returning, he heard screams of his father “BACHAO BACHAO MUJHE KYON MAR RAHE HO”. When he turned around, he saw his brother Surjeet Kumar hitting the deceased with 'Banka'. He rushed to the spot by when other persons also came. He has stated that the accused did no work and would often indulge in drinking and gambling. He also used to state repeatedly that his share of land be given to him. He has denied having told the Investigating Officer that the accused was mentally retarded on account of which his marriage was not performed. He has denied the suggestion that a false deposition has been made before the Court on the asking of PW-1. Since this witness was not fluent and would stammer, as such some of his answers were got written in hand by him and is a part of the record.
9. PW-4 Dr. Tejpal Rathore is a child specialist in District Hospital, Pilibhit, who has certified that postmortem was performed by him. As per him multiple injuries were caused to the deceased by a sharp edged weapon resulting in injury of 10 cm x 2 cm cranial cavity deep and 5 cm x 1 cm bone deep injury in the tempo parietal region. One of his hand was fractured and humorous bone was also found. Cause of death was ante mortem injuries caused as a result of ante mortem head injury. PW-5 is a witness to the Panchayatnama, which began on 28.11.2011 at about 10.00 a.m. and concluded at 12.45. Other formal witnesses have also been produced by the prosecution.
10. The statement of accused under Section 313 Cr.P.C. has been recorded, which is interesting and also intriguing. Accused has stated that 'drama' was prepared; 'drama of Dashrath Ji' was made; 'drama' was made to bring in jail. In reply to the next question, the accused appellant has stated that 'it is not so, I thought that people kill the world, so I may kill my own father'. 'Drama of Dashrath Ji was played and then I fled to my village. He has also stated that blood stains came on the Gandasa (Banka) which was cleaned by grass. When he killed his father, the wooden handle of 'Banka' broke, and he knows nothing else. He has also stated that he be acquitted and those doing drama of Dashrath Ji be punished. The statement under Section 313 Cr.P.C. shall be analyzed with reference to the evidence brought on record, later.
11. It further transpires on record that during the course of trial an application was moved on behalf of accused stating that he is mentally unstable. An argument is advanced in defence of the accused that he is not aware of what he states or does and has been falsely implicated by his brothers, taking advantage of it. His reply in proceedings under Section 313 Cr.P.C. is also cited for the purpose. Statement of accused was recorded on 15.3.2013. The trial judge, accordingly, directed CW-1 to be adduced as a witness as he had examined the accused soon after his arrest as he was having certain injuries on his body.
12. CW-1 has been examined as a witness on 23rd of March, 2013. He has testified that accused was examined by him on 1.12.2011. The accused had healed abrasion of 1-1/2 cm x 5 cm on the front side of his neck and 11 cm long healed abrasion on his stomach. The medical report was also produced and was marked as Ext.-A 19. Dr. S.K. Singh has opined that these injuries were about 3 to 4 days old and could have been caused on 26.11.2011 at about 10.00 a.m. In reply to a question posed by the A.D.G.C. (Crl.) the Doctor has stated that such injuries could have been inflicted while hitting somebody with 'Banka'. The Doctor has also stated that the accused was in his senses and the way he was replying to his queries it cannot be said that he was mentally sick. The Doctor however has admitted that he is not a mental specialist. The Doctor has further stated about the possible scenarios in which such an injury could be caused.
13. The trial court, in order to examine defence set up by accused has examined the accused upon application 12-Kha as well as objection filed thereto. His examination is on record and is reproduced hereinafter:-
“vfHk;qDr ds fo}ku vf/koDrk }kjk izLrqr izkFkZuk i= la0 [k 12 fnukafdr 28- 7-12 rFkk ml ij vkifRr ds lanHkZ esa vfHk;qDr dh ijh{kk& iz'u& vkidk uke D;k gS \ mRrj& lqjthr dqekj iz'u& vkidk fuokl LFkku dgkW gS \ mRrj& xzke&xgyksb;k] yyjh [ksM+k pkSdh gS vkSj Fkkuk tgkukckn gSA iz'u& vkidh f'k{kk D;k gSa \ mRrj& d{kk ukS ikl gSA iz'u& vkids ekrk firk rFkk HkkbZ dk D;k uke gS \ mRrj& yTtkorh] dSyk'k panz] eq>s feykdj rhu HkkbZ gS iz'u& esjk uke lqjthr cMs HkkbZ dk Jh iznhi dqekj] NksVs dk lgsUnzikyh iz'u& rqe ij eqdnek D;ksa pyk \ mRrj& firk ij okj fd;k FkkA iz'u& rqEgkjs HkkbZ bl eqdnes esa xokgh nsuk pkgrs gS D;ksa \ mRrj& og yksx eq>s xyr le> jgs gSA iz'u& HkykbZ D;k gksrh gS \ mRrj& vPNs dke djuk HkykbZ gksrh gSA iz'u& vPNs dke D;k gksrs gS \ mRrj& pksjh] MdSrh u djks] etnwjh djds isV HkjksA iz'u& cqjs dke D;k gksrs gS \ mRrj& pksjh] MdSrh] yksxksa esa yM+kbZ djokukA iz'u& vkidk fookg gks pqdk gS \ mRrj& ughA iz'u& fookg djksxs \ mRrj& tc ;gkW ls NwV dj ?kj igqWpsxs rks lkspsaxsA iz'uks ds mRrj Li"V rFkk rkfdZd gSA vfHk;qDr fof{kIr ugh gSA fopkj.k dh dk;Zokgh vkxs c<+kbZ tk,A cpko i{k dk izkFkZuk i= [k 12 fujLr fd;k tkrk gSA”
14. On the basis of aforesaid materials i.e. statement of CW-1 as also the examination of accused by the court itself, the court has come to a conclusion from the reply of appellant to the questions put to him that the accused was logical and fully understood as to what is right or wrong and that the accused is not mentally retarded.
15. Further, on the basis of evidence led by the prosecution the trial court has come to the conclusion that the accused appellant alone has caused homicidal death of deceased and he has been sentenced to life imprisonment for offence under Section 302 IPC. Accused, however, has been discharged of offence under Sections 304 and 506 IPC. Fine of Rs.20,000/-has also been imposed.
16. Sri Ashok Kumar Yadav, learned Amicus Curiae has passionately contended before us that appellant is a mentally challenged person, who has been falsely implicated by his two brothers, only to deprive him of his portion of land, taking benefit of his unstable mental state. Learned counsel submits that the oral testimony of eye witnesses is not credible and reliable, inasmuch as PW-1 and PW-3 are interested persons while presence of PW-2 is doubtful and his statement is otherwise not reliable since he is an aged person who claims to have seen the incident from a distance. PW-2 is said to have joined PW-1 and PW-3 in falsely implicating the accused. It is also urged that the motive of offence was to get rid of the father and also the accused appellant so that the two remaining brothers may share the ancestral land amongst themselves.
17. Sri Arunendra Kumar Singh, learned Additional Government Advocate has appeared for the State, and has supported the judgment of the trial court for the reasons recorded therein. It is stated that the accused has deliberately committed the heinous crime out of his lust for land, in sound mental health, and that the crime is proved to have been committed by the accused.
18. We have examined the respective arguments advanced at the bar and have carefully perused the records brought on record.
19. Trial court has carefully examined the oral testimony of three eye witnesses i.e. PW.1, PW.2 and PW.3. These witnesses have been cross examined and no material contradiction has been found in their statement. In the oral statement of PW.1 and PW.3 it is clearly stated that the accused appellant used to threaten the deceased, his father, for his share of land to be demarcated or else he would kill him. These three witnesses are resident of the same village and their presence close to the place of occurrence has not been found probable. PW-1 is stated to be returning from his field after ploughing it. The trial court has observed that it is common in villages for the farmers to go to their fields early in the morning and to return around 9.00 to 10.00 a.m. These three witnesses have clearly deposed before the trial court that the offence was committed by the accused appellant resulting in homicidal death of his father. They have clearly stated having seen the accused appellant repeatedly attacking the deceased with Banka resulting in multiple serious injuries being caused to the deceased. The consistent statement of three witnesses have been found to be credible and reliable. Even before this Court, learned Amicus Curiae has placed the statement of these three eye witnesses with an intent to show contradictions in the respective statement of witnesses. Attempt has also been made to doubt their presence near the place of occurrence. We are, however, not impressed with the arguments advanced on behalf of the defence. Apart from some minor contradictions the statement of three eye witnesses are consistent. Their presence at the place of occurrence does not seem to be doubtful. PW-1 was returning from his field close by while PW-3 was returning after leaving his father who had to go to Pilibhit. PW-2 has a 'Aata Chakki' close by and is an independent witness. Their presence and statement appears credible and reliable. Such statement is otherwise supported by medical evidence brought on record. Learned Amicus Curiae has not been able to demonstrate any material contradiction in the stand of three eye witnesses who have all unanimously accused appellant of having attacked the deceased with sharp edged weapon (Banka) resulting in serious injuries being caused on head and other parts of the body. The statement of eye witnesses is otherwise corroborated by medical evidence of PW.4, who had conducted the postmortem. The doctor has clearly opined that there was multiple lacerated wound on the head which was cranial cavity deep to bone deep and on tempo parietal region. The left arm and elbow as well as left humerus bone was found broken. In the opinion of the doctor death of deceased was caused due to injuries caused on head on account of which he had gone in coma. The time of injury in the postmortem report also matches with ocular testimony.
20. From the evidence brought on record, we find no error in the analysis of fact by the court below on the basis of evidence adduced at the stage of trial to hold the accused appellant guilty of having murdered his father with the sharp edged object (Banka).
21. Learned Amicus Curiae has mainly harped upon the premise that the accused appellant was mentally retarded and his two brothers have falsely implicated the accused appellant so as to take his land. So far as the plea that accused appellant being mentally retarded is concerned, it would be appropriate to note that the accused appellant has been examined by the court in view of the Application No.12 dated 28.7.2012, filed by the counsel for the accused appellant. Examination of accused appellant has already been extracted above. The accused appellant has admitted that he has passed class IX; he is aware of the names of his family members; he also knows distinction between good and bad; and what should be done and what should not be done. He has also stated that he would think about his marriage once he goes back. Trial court on the basis of examination of accused appellant has returned a specific finding that the accused appellant has been able to correctly reply to the questions posed to him which are otherwise logical. Finding has been returned that the accused appellant is not mentally retarded. Statement of CW-1 Dr. S.K. Singh also supports the view taken by the court below on the mental state of accused appellant. Although learned Amicus Curiae has persisted with his argument that accused appellant is mentally unstable but no evidence worth the name has been adduced to prove it has been brought on record. The statement of accused appellant under Section 313 Cr.P.C. alone would not be a sufficient material to hold him to be mentally unstable. Although accused appellant has been found both by the court and the Doctor to be mentally sound yet he has not explained the circumstances leading to his implication. Incriminating materials placed before the court in trial against the accused has also not been explained. The finding of the trial court that appellant has given correct answers to the questions posed to him, which are otherwise logical, is not shown to be perverse or erroneous. Accused's version (Drama of Dashrath Ji) is not convincing at all. No defence witness is adduced. Thus, the only version of the case before the court is the prosecution version. No other evidence has been adduced to show that the accused appellant is mentally unstable. In such circumstances, the argument of learned Amicus Curiae that the accused appellant is mentally retarded cannot be accepted.
22. It would also be relevant to take note of the statement of the accused appellant under section 313 Cr.P.C. The answers have been noticed above. The accused appellant has although referred to some Natak of Dashrath Ji, which is not explained, but has clearly admitted of having thought of killing his father as people otherwise kill others in the world. He has also admitted that Banka got blood stains when he hit his father and he cleaned it by grass and that the wooden handle got broken. The Doctor i.e. CW-1 while medically examining accused appellant has observed that injuries to the accused could have been caused while inflicting repeated blows by Banka. The Banka has also been recovered at the pointing out of the accused appellant. The statement under section 313 Cr.P.C. virtually reflects admission on part of the accused appellant of having committed the offence.
23. The findings returned by the trial court that PW.1, PW. 2 and PW.3 had seen the accused appellant inflicting repeated blows with Banka upon the deceased, resulting in his homicidal death is consistent, credible and reliable and is otherwise supported by medical evidence brought on record is affirmed. The prosecution has been able to satisfactorily prove its case beyond reasonable doubt that the accused appellant had in fact murdered the deceased. The conviction of accused appellant is, accordingly, sustained.
24. So far as awarding of sentence to the accused appellant is concerned, we are in agreement with the view taken by the trial court that accused appellant due to his lust for landed property has murdered his father, and therefore he is liable to be punished for life. The fine of Rs.20,000/- imposed upon him is also affirmed.
25. This jail appeal, accordingly, fails and is dismissed.
26. In the facts and circumstances of the present case, we determine the fee of the learned Amicus Curiae at Rs.15,000/-, which shall be paid to him within a fortnight.
Order Date :- 30.5.2018 Anil/Ashok Kr.
(Chandra Dhari Singh, J.) (Ashwani Kumar Mishra, J.)